Citation Nr: 21010077 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-07 737 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 22, 2012 is granted. FINDING OF FACT The Veteran has been unable to obtain and maintain substantial and gainful employment due to his service-connected disabilities since March 22, 2012. CONCLUSION OF LAW The criteria are met for an effective date of March 22, 2012, for the grant of a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1981 to March 1982. This claim arises from the appeal of an August 2012 rating decision that denied an increased rating higher than 40 percent for the Veteran’s service-connected low back disability and denied a TDIU. The agency of original jurisdiction (AOJ) issued an additional decision in January 2013, but the Veteran’s Notice of Disagreement was received within one year of the August 2012 decision. The issue of entitlement to a TDIU was remanded by the Board of Veterans’ Appeals (Board) in a June 2018 decision, and, in an October 2018 rating decision, the AOJ granted a TDIU, effective in March 2018. Because the Veteran’s claim was received in March 2012, the AOJ grant was considered partial in that the effective date of the award was March 2018. Accordingly, the Board again remanded the issue in July 2020 to refer the claim to the Director of Compensation Service for consideration of whether an earlier TDIU, on an extraschedular basis, was warranted. In November 2020, the Director of the Compensation Service found that the Veteran was entitled to an extraschedular TDIU, and assigned an effective date of June 7, 2016. The issue of whether the Veteran is entitled to an even earlier effective date has returned to the Board for review. The Veteran requested, and was offered the opportunity to give testimony before a Veterans Law Judge. In correspondence received in August 2019, the Veteran withdrew his hearing request. Entitlement to an effective date prior to June 7, 2016, for the award of a TDIU When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. Where a veteran's schedular rating is less than total, a total disability rating may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided certain requirements are met. Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran meets the schedular requirements for a TDIU in March 2018, with a 40 percent rating for chronic low back strain, 20 right lower extremity sciatic nerve radiculopathy and 20 percent for left lower extremity sciatic nerve radiculopathy, and a combined rating of 60 percent with disabilities resulting from a common etiology or a single accident considered a single disability. See 38 C.F.R. § 4.16(a). He does not meet the schedular requirements prior to this date of March 26, 2018. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), discussed above, the case may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). As previously mentioned herein, the issue of entitlement to an extraschedular TDIU was referred to, and considered by, the Director of the Compensation Service, who granted an extraschedular TDIU, effective from June 7, 2016. However, as the appeal period goes back to the date of receipt of the Veteran’s claim in March 2012 claim, the issue of entitlement to a TDIU on an extraschedular basis prior to June 7, 2016 remains on appeal. Further, as this matter was initially reviewed by the Director, the Board may proceed with review of this issue. Anderson v. Shinseki, 22 Vet. App. 423 (2009). Accordingly, the remaining inquiry is whether the Veteran’s service-connected disabilities precluded substantial and gainful work prior to June 7, 2016. In addressing this matter, the Board will start from the date his claim was received by VA on March 22, 2012. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As discussed in the July 2020 Board Remand, the Veteran has reported not working since 2011. He has a high school education and work experience as a cook. The medical evidence of record suggests that he has been unable to secure and follow substantially gainful employment due to his service-connected low back disability. The Social Security Administration (SSA) found the Veteran disabled from May 2013 with a primary diagnosis of disorder of back. In a January 2015 counseling report for vocational rehabilitation and employment, the report found that the Veteran’s back, among others, limited his ability to stand, lift, push, pull, carry, twist, and turn and concluded that the Veteran is incapable of performing even part time sedentary activity. As early as an examination in November 2011, the Veteran’s low back condition manifested in painful motion starting at 20 degrees of flexion, with intervertebral disc syndrome causing 1 to 2 weeks of incapacitating episodes. The Veteran experienced less movement than normal, weakened movement, excess fatigability, and pain on movement after repetitive use. While the examiner found that the Veteran’s back disability had no impact on his ability to work, this appears contradictory to the examination findings. Indeed, the Board notes that VA treatment records indicate that the Veteran was prescribed multiple medications for pain, including oxycodone and tramadol. On VA general examination in May 2012, the Veteran’s peripheral nerve conditions were acknowledged in conjunction with his back condition, even though they had not yet been service-connected. On VA examination for the Veteran’s back condition in May 2012, the examiner opined that the Veteran’s service-connected back condition, and the medications prescribed for that condition, would not preclude “non-laborious sedentary work.” However, in the same statement, the examiner acknowledged the Veteran’s work experience as a cook, which is not a sedentary job. While SSA findings are not binding on VA, the evidence provided by SSA evaluations can be informative and persuasive. In this regard, the Board acknowledges an SSA finding dated in August 2014 which indicates that the Veteran’s low back pain limits his ability to sit for less than one hour at a time—or to stand for 10 minutes without pain. In consideration of the evidence prior to June 7, 2016, during which time the Veteran was not working and experienced low back pain, limited motion, weakened movement, excessive fatigability, an inability to work a non sedentary job, and an inability to sit or stand for long periods of time—in conjunction with consideration of the Veteran’s work experience as a cook, the Board finds that a TDIU is warranted throughout the appeal period. Although he may have been physically able to do sedentary work during this time frame, the record does not show that his work history, prior training, and skills would transfer to a sedentary position that is also substantial and gainful. Accordingly, a TDIU on an extraschedular basis prior to June 7, 2016—and specifically since March 22, 2012—is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.